John Byron (’11) argued to the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., on Friday, Sept. 24, as part of the law school’s Appellate Advocacy Clinic. The Fourth Circuit decides federal appeals from five states, including North Carolina. The Clinic represents Danny Keith Thomas in the case of United States v. Thomas.

“John did an excellent job arguing the appeal,” said Clinic Director Professor John Korzen.

A three-judge panel heard the argument: Chief Judge William Traxler of South Carolina, Circuit Judge Robert King of West Virginia, and District Judge Jerome Friedman of the United States District Court for the Eastern District of Virginia, who coincidentally is a 1969 Wake Forest University School of Law graduate. All three judges praised Byron’s performance in comments after the argument.

It was a fairly “hot” bench, with at least a question per minute and each judge asking multiple questions, according to Korzen.

“John was well-prepared and gave persuasive answers to every question,” he said. “Before going to Richmond for the argument, John practiced his argument with the entire Clinic and again in one-on-one sessions with classmates Megan Curran and Ben Wiles.”

The Thomas appeal includes a significant “retroactivity” issue. In 2005, Thomas pled guilty to attempted possession of methamphetamine and to either “possession” or “use” of a firearm during a drug transaction. (In his 40s, with no prior criminal record for the past 20 years, Thomas developed a methamphetamine addiction, which he fueled by selling the drug.)

At issue on appeal is whether Thomas should have his firearm conviction reversed due to a later Supreme Court decision, Watson v. United States. In 2007, the Court held in Watson that one who trades drugs for a firearm does not “use” a firearm during a drug transaction. An earlier Supreme Court decision, Smith v. United States, held the reverse – that one who trades a firearm for drugs does “use” a firearm in a drug transaction.

In 2008, Thomas filed a motion to vacate his conviction, based on Watson, in the United States District Court for the Western District of North Carolina. The District Court dismissed the motion because the Supreme Court had not made Watson “retroactive” to prior cases. Thomas appealed, and the Fourth Circuit appointed the Clinic to represent Thomas.

Last year, Caroline Payseur (’10), researched and wrote a brief in the Thomas case contending that substantive changes to the law such as Watson automatically apply retroactively. The Fourth Circuit has not yet decided a similar issue. A decision in Thomas is expected within three months.

The Appellate Advocacy Clinic represents clients in various appellate courts. The Clinic currently has four appeals pending in the Fourth Circuit and two appeals pending in the North Carolina Court of Appeals. Students who want to enroll in or obtain information about the Clinic should contact Professor Korzen.